Open court for appeals to family judges

A number of appeals from lesser judges in the family courts were transferred from being heard in the Court of Appeal to be heard by a judge – mostly High Court judges – in the Family Court (from 14 April 2014). Since then there has been sporadic debate as to whether appeals in family courts should be heard in private or in public.

A new rule, effective from 10 December 2018, does not resolve the debate; but at least it has been put beyond doubt that an appellate judge can order that an appeal hearing, or part of it, is to be ‘in public’. A new Family Procedure Rules 2010 r 30.12A is added to the family courts appeal part of the rules (FPR 2010 Pt 30). Most Court of Appeal hearings are in public. The open justice principle applies. Most family hearings are in private. The new rule does not say whether in future open court principles are to be preferred; but it confirms the appellate judges to open their court to the public.

Thus, the new r 30.12A allows the appellate court to order that part or all of ‘the hearing of the appeal to be in public’ (r 30.12A(2)(a) and (b)). The same rule enables the judge to exclude ‘any person or class of persons from attending a public hearing’ (r 30.12A(c)) and to restrict publications of names of children parties and others. The rule does not say who asks for the hearing to be public; but the judge plainly has the power on his or her initiative to open an appeal hearing to the public.

Nothing is said in the new rule as to when the new open court powers are to apply. The general rule in all hearings is that they are in open court. The common law provides extensively for where the general open court rule can be overridden and a hearing dealt with in private. These exceptions to the open court rule are summarised in Administration of Justice Act 1960 s 12(1) and Civil Procedure Rules 1998 r 39.2(3). Rule 39.2(3) is reproduced for family (divorce) proceedings in FPR 2010 r 7.16(3).

Each of these three provisions together reproduce the common law exceptions to the open justice principle (eg children proceedings and proceedings where confidential information, such as family finance, are in issue). They would give judges a convenient starting point for a decision as to whether to open a Part 30 family appeal to the public.

2 Comments

David Anthony
on 12 December 2018 at 12:32 pm

The procedural rule change brought in in 2014 does not appear to have addressed the issue of the rights being lost in appeal by appellants as a result of these appeals of lower courts’ rulings now being held generally (even with latest FPR rule change) in private.

Appeals from District Judges in Family Court matters (divorces) can now be brought to an end totally privately in an appeal before a circuit judge especially if the latter refuses Leave to Appeal. The appellant can believe the original District Judge’s approach was crass and unlawful (we all know such occurrances do happen) and perhaps hold that the circuit judge’s conduct of the appeal was superficial and inadequate. Whether he is right or wrong on these matters (and not all circuit judges are necessarily ‘that bright’ or fair or particularly up to date with precendent and law) will be something which litigants in person in particular now will have to keep entirely to themselves as they cry into their beer – whereas, previosuly, the hearing of record of Appeal proceedings would have been public. If the court has taken against the litigant there may be a civil restraint order imposed at the end of the appeal, restricting the litigant in person further, because his case is ‘completely without merits’. Once again, whether such a decision is well-founded or not, no one outside of the court room is ever permitted to know….All is now private. A litigant in person can be effectively brow-beaten by this ‘private’ court bullying into giving up completely.